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Tolmara Themes ("The Good", Problems of Legal Philosophy, Freedom and Determinism)
Philosophical Themes

A. "The Good" and Justice

G.E. Moore in Principia Ethica (Cambridge, 1903), declared that the term "good" stood for a simple, non-natural indefinable quality, known by intuition and that attempts to define it were inevitably fallacious. This somewhat obscure view has not generally prevailed, and philosophical inquiry into good continues. Philosophical concern with good can roughly be subdivided into four sorts:

1. What does the term or word "good" signify?
2. What things are good, and how do we know them to be so?
3. What is the highest good, the complete good?
4. What sorts of goodness are there, and how, in particular is moral goodness related to other varieties of goodness?

Things that are good may also be viewed from the point of view of how they will contribute to a well-spent or happy human life. The idea of a complete good is that of what will wholly satisfy the complete need and destiny of humans. This may be one thing (e.g., contemplating the face of God), or a combination of many things, as envisaged in Aristotle's account of the 'political life' in the Nicomachean Ethics. The notion of the highest good is often obscure. It may signify that one good which is better than any other good or that one good is better than all other goods taken together.

On the other hand, "justice" is in one sense, identical with the ethics of who should receive benefits and burdens, good or bad things of many sorts, given that others might receive these things. Although discourse about justice is often influenced by models of law, the ethics of justice is a subject unto itself. To 'receive' a benefit or burden is to have any of a large number of more concrete relations to it: not only legal ownership or other entitlement may be relevant, but also non-legal matters. Enjoyment of an experience, having access to many opportunities, getting protection from or exposure to a risk, and so on may be relevant. The others' relevant to justice may be those living in a person's community, those in other communities, or even those dead, those yet to live, or perhaps possible persons who will never live.

There are various contexts for talk about justice, including (at least) distributive, retributive, and "corrective" justice. Distributive justice concerns the ethical appropriateness of which recipients get which benefits and burdens. Retributive justice concerns the ethical appropriateness of "punishment for wrongdoing." Corrective justice concerns the ethical appropriateness of compensating with some good because of a loss or appropriating some good because of a gain.

A few in philosophy have doubted the rational basis or the desirability of any justice orientation. But many philosophers have advocated some conception of justice, often aligning themselves with some political tendency: "liberal democratic capitalism", 'laissez-faire market-oriented capitalism', some variety of socialism, etc. Indeed, political and economic power are goods, and to worry about justice of who has them is familiar, especially for those philosophers who have taken egalitarianism to be basic to justice.

Moden accounts of justice tend to be base on ideas about human rationality, human intuitions, human community, or the like (as opposed, say, to "cosmic justice" or the "will of God"). John Rawls's very influential A Theory of Justice, and subsequent writings, are instructive in this connection. Rawls argues that his two principles of justice (the first requiring, roughly, an equal right to the most extensive system of equal basic liberties, taking priority over the second, a principle that allows for certain inequalities subject to various constraints, including the requirement that the inequalities are to the greatest benefit of the least advantaged) would be chosen by autonomous judges behind a veil of ignorance designed to deny them knowledge of their own positions in a social system to which the principles will apply.

A large variety of criteria have been proposed for ethically just distributions. Some think just distributions should be in accordance with contribution, some with effort, some according to need, and so on. Some think that just distributions are a matter of history of how a certain distribution came about. There seems to be no finite list of criteria, no definitive decision procedure here.

In light of this, one can see the attractions of pluralism and "complex equality", as presented by Michael Walzer -- people collectively 'create' goods of innumerable sorts and distribute them in accordance with many criteria, the appropriateness of which changes historically and varies with the social sphere concerned, whether we are talking about love, money, medical care, schooling, political power, and so on.

B. Problems of Legal Philosophy

Some problems of legal philosophy that the campaign will attempt to explore include:

1. Are rights mere logical constructs from, or shadows of, a prior concept of duty or obligation (i.e., right to vote = citizen's duty to vote, participatory process in civics)?

2. Is a liberty (permission) the mere absence of a contrary duty, or does it entail a prohibition of some (or all) types of interference by X in the exercise of Y's liberty, and if so would it always or ever entail that Y has a liberty-right-to do what he ought not to? (i.e., freedom of speech issues come immediately to mind)

3. Given the definitions of "rule", "obligation", "right" and "liberty", is law always an instrument of social control regardless of the controllers' purposes? Does law serve liberty's purpose by its very existence, or is liberty one fundamental benefit of law -- in other words, is political and social freedom (i.e. democracy) necessarily a function of the rule of law? Does the injustice of a law affect its authority, validity or obligatoriness? Is equity/equality a matter simply of interpretation or can it correct the intentions of law makers? Do laws and contracts creating obligations entail no more than the obligation to pay the penalty (or damages) for non-fulfillment? Is it right for a judge to change the law in order to override the deliberately adopted policies of a democratic majority? Can judges rely upon their own personal knowledge unsupported or even opposed by the evidence admissibly tendered in a case?

4. Legal philosophers have debated three views about the connection between legal truth and moral truth -- between what the law is and what it should be.

One view -- legal positivism -- insists that legal reasoning is entirely factualL what the law is depends only upon what has been declared to be law by whichever officials the public treats as having that authority, or on similar historical facts, and on nothing else. On that view, though moral views that are popular within a community are very likely to influence the laws it legislators adopt, there is no necessary connection between law and moral truth, and abstract moral considerations play no role in deciding what the law is.

A second view holds that legal reasoning is identical to moral reasoning, so that, at least on fundamental matters, the only real law in force in any community is the moral law, and any laws a legislature might make contrary to that moral law are invalid. On that view, the alleged legal system of a tyranny like Nazi Germany is not law at all.

On the third view, legal reasoning interprets rather than simply describes or judges legal history; it aims to reformulate legal decisions in the most coherent and morally attractive way consistent with the facts of legal history, that is, with the words past legislators used, the concrete orders past judges actually made, and the political and moral traditions of the community. Understood as interpretative in this sense, legal reasoning is not just historical investigation, nor abstract moral reasoning about what rules or principles would be appropriate to an ideally just world, but combines elements of both.

C. Freedom and Determinism

The great problem of freedom and determinism is that there are really two problems, one of them metaphysical and empirical in kind, the other ethical and in other ways attitudinal in kind. The first problem is that of whether human choices and actions are causally determined or are in an way free. The second problem is that of the implications of determinism for our moral, personal and social lives.

Determinism in the context of these problems, to be more specific, is usually the thesis that all our mental states and acts, including choices and decisions, and all our actions are effects necessitated by preceding causes. Thus our futures are in fact fixed and unalterable in much the same way that the past is. The truth or falsity of the thesis depends on our natures, including physical natures, and not at all upon our desires or hopes or other feelings.

What freedom comes to with these problems is much disputed. Different concepts enter into both the factual and the attitudinal problem. Metaphysical freedom or origination, one of the two main kinds, involves not being completely governed by deterministic causal laws. Those who support it say threre are no laws, whether of the mind or the brain or both, that completely settle what we will choose and do. Metaphysical freedom also involves not just the absence of such laws but also our having a kind of power to choose which path the future will take.

Some philosophers, incompatibilists, believe that determinism if true destroys moral responsibility, undermines interpersonal relations amd destroys our life-hopes by making all actions unfree. Freedom and determinism are incompatible. Incompatibilists who also believe that determinism is false, and hence that some actions are morally responsible, are often called libertarians. Incompatibilists who also believe differently, that determinism is true, and moral responsibility is therefore an illusion, are sometimes called hard determinists.

Other philosophers, compatibilists, deny that determinism has any such effect on freedom or moral responsibility. Freedom and determinism are compatible. They are sometimes called determinists, but this description has the unfortunate effect of officially conflating the problems of the truth of determinism and our appropriate response to it. Compatibilists rest their argument on the claim that the sense of 'free' in which actions must be free in order to be morally responsible is not the sense that involves origination and is opposed to 'causes' or 'determined'. We only need to be free in the sense in which 'free' isopposed to 'compelled' or 'coerced'. We only need to be voluntary in the sense. All we need is voluntariness. In one analysis, I am free in performing an action if I could have done otherwise, but this latter proposition is to be understood as I would have done otherwise if I had chosen. So I could have done otherwise if determinism is true.
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